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Abstract 96/97-07

Summary of Facts Provided

An elderly couple had established a living trust with a trustee. The trustee became concerned that third person was exercising improper influence on the couple and obtaining large cash gifts from them. The trustee filed a petition for guardianship and conservatorship of the couple. The attorney was asked to represent the couple in the proceedings. The attorney argued that the couple was competent and that the large cash gifts were free of undue influence. The couple were found to be competent and the petition was denied. However, the court admonished the third person to have no further financial involvement with the couple.

Over two years later, the attorney received a typewritten letter apparently bearing the husband's signature. The letter requested that the couple's estate plan be amended to leave their entire residuary to the third person. When the attorney met with the couple, the attorney noted that the clients' physical and mental capacities had declined dramatically. The husband had no recollection of sending the letter and said he would never have suggested such a thing.

Although the attorney believed the couple still to be competent, the attorney concluded that both had become "incredibly vulnerable" to the exercise of undue influence. Moreover, the attorney was provided information which suggested that the third person had continued to have regular contact with the couple after the original court hearing.

The attorney contacted the judge who had admonished the third person regarding further financial involvement with the couple. The judge declined to take any formal action, but suggested that the attorney consider alerting the county department of social services, so it could determine whether court protection was warranted. The attorney believes that the clients would resist a conservatorship or other protective proceeding and would view any such effort by the attorney as contrary to their basic wishes. The attorney is concerned that he may not be adequately protecting the clients if he does nothing.

Issues and Conclusions

Colorado Rule 1.14(b) provides that "a lawyer may seek the appointment of a guardian or take other protective actions with respect to a client only when the lawyer reasonably believes the client cannot act in the client's own interest." To make this determination, an attorney may "seek guidance from an appropriate diagnostician." Although ethics opinions in some states are to the contrary, the preferable view is that Colorado Rule 1.6 impliedly authorizes the attorney to disclose information relating to the representation to the extent necessary to serve the best interests of the client who the attorney reasonably believes to be disabled. See ABA Informal Opinion 69-1530. Thus, an attorney may consult a physician or other appropriate diagnostician. Further, such consultation may be helpful in identifying other voluntary protective arrangements, such as a durable power of attorney, irrevocable trust, or a voluntary court protective proceeding such as limited guardianship, special conservatorship, or an appropriate court trust.

Ordinarily, lawyers who are concerned about the need for a guardianship or conservatorship for an incapacitated client feel they are impliedly authorized to contact interested family members who can then decide on a course of action after consulting with another attorney concerning the available options.

Commentators have warned that an attorney who represents an older person with diminishing capacities is confronted with a host of difficult ethical issues. They suggest that competent representation may require the lawyer to develop knowledge of other fields, such as medicine, gerontology, psychiatry, psychology, or social services. For a compendium of resources, see Hemp and Nyberg, "Elder Law: A Guide to Key Resources," 2 The Elder Law Journal 1-87 (Spring 1995). Assistance for any attorney who is not a specialist in elder law is also available through the CBA Elder Law Committee, Disability Law Committee, and the Real Property, Probate, and Trust Law Section. See also Callahan and Strauss, Estate and Financial Planning for the Aging or Incapacitated Client (Practicing Law Institute, 1986, 1988 et seq.); Schneider, "Planning Options for the Elderly and Disabled," Probate and Property at 8-12 (May-June 1996); Adams and Morgan, "Representing the Client Who is Older in the Law Office and in the Courtroom," 2 The Elder Law Journal 1-38 (Spring, 1994).